Schenck v. United States

The U.S. Supreme Court has never held that expressive freedoms of speech, press, and assembly are completely without limits. The difficulty lies in settling on a general standard or test to be applied in determining when a form of expression becomes so threatening to society that it deserves no constitutional protection and must be controlled by government.

Such judicial standards or tests, beginning with the "clear and present danger" test, emerged shortly after World War I. The "clear and present danger" test, formulated by Justice Oliver Wendell Holmes in 1919, provided that if actions create a danger to organized society so "clear and present . . . that they will bring about . . . substantive evils" then government must attempt to prevent the activities. Holmes wrote the actions requiring intervention must be so imminently threatening they require "an immediate check . . . to save the country." In 1925 the "clear and present danger" test was weakened to the "bad tendency" test requiring only a threat of or tendency toward danger. Much later in 1969 the "clear and present danger" test returned with a "likely to incite" requirement added.